Peery v. Quincy, Omaha & Kansas City Railroad Co.
| Decision Date | 19 November 1906 |
| Citation | 99 S.W. 14,122 Mo.App. 177 |
| Parties | HENRY T. PEERY, Defendant in error, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Plaintiff in error |
| Court | Kansas Court of Appeals |
Appeal from Grundy Circuit Court.--Hon. Geo. W. Wannemaker, Judge.
AFFIRMED.
Judgment affirmed.
J. G Trimble and Hall & Hall for plaintiff in error.
(1) The trial court erred in overruling defendant's motion to strike out the amended statement. The second count of the statement contained a new and entirely different cause of action than the one the case was tried on in the justice's court, and the case was tried on one cause of action in the justice's court and a different one in the circuit court. R. S. 1899, secs. 4077, 4079; Rippe v Railroad, 71 Mo.App. 557, 154 Mo. 358; Gurley v Railroad, 93 Mo. 445; Jackson v. Fulton, 87 Mo.App. 238; Gregory v. Railroad, 20 Mo.App. 448; Evans v. Railroad, 67 Mo.App. 255; Sturges v. Botts, 24 Mo.App. 282. (2) The damages sued for constituted but a single cause of action and should have been sued for in one count instead of two. Stickford v. St. Louis, 7 Mo.App. 217; Lamb v. Railroad, 33 Mo.App. 489; Binicker v. Railroad, 83 Mo. 660; Sims v. Railroad, 83 Mo.App. 250. (3) The court erred in overruling defendant's instructions in the nature of a demurrer to the evidence, especially the one offered at the close of all the evidence. The plaintiff was not the owner or proprietor of the joining lands. Section 1105, Revised Statutes 1899, was intended for the benefit of the adjoining owners or proprietor and not for the benefit of owners of trespassing animals. Carpenter v. Railroad, 25 Mo.App. 110; Berry v. Railroad, 65 Mo. 172; Harrington v. Railroad, 71 Mo. 384; Johnson v. Railroad, 80 Mo. 620; Peddicord v. Railroad, 85 Mo. 162; Geiser v. Railroad, 61 Mo.App. 459; Bank v. Railroad, 109 Mo.App. 165; Phillips v. Railroad, 107 Mo.App. 203. (4) The uncontradicted evidence is that the employees of the defendant had repaired and closed the gate and the fence almost daily for quite a while before the accident, had reset the post, repaired the fence and closed the gate two days before, and again the day before the accident. The defendant was not liable for the killing of the heifer which came upon the tracks through the gate that had been left open by some one else, without the knowledge or consent of the defendant. Harrington v. Railroad, 71 Mo. 384; Binicker v. Railroad, 83 Mo. 660; Ridenore v. Railroad, 81 Mo. 231; Railroad v. Kavanaugh, 163 Mo. 54; Morrison v. Railroad, 27 Mo.App. 431; Bumpas v. Railroad, 103 Mo.App. 207. (5) Defendant's section men had reset the post, repaired the fence and shut and fastened the gate the day before the injury, and there is no evidence that defendant, or its employees, had any notice that the post had been again removed and the gate opened, and left open and no recovery can be had in this case without showing that defendant had such notice. Fitterling v. Railroad, 79 Mo. 508; Morris v. Railroad, 79 Mo. 367; Clardy v. Railroad, 73 Mo. 578; Case v. Railroad, 75 Mo. 668; Laney v. Railroad, 83 Mo. 466. (6) Plaintiff's instructions 1 and 2 are erroneous for they declare that it was the absolute duty of defendant to erect and maintain the gate in question, while section 1105 only required defendant to erect gates at necessary farm crossings. The question ought to have been submitted to the jury whether the crossing was necessary or not, by instructions properly stating the conditions which made a crossing necessary and requiring the jury to find from the evidence that such conditions existed in this case. This error is fatal and the judgment should be reversed for this reason. Miller v. Railroad, 56 Mo.App. 78; Stumpe v. Railroad, 61 Mo.App. 357; Rowen v. Railroad, 82 Mo.App. 24; Birlew v. Railroad, 104 Mo.App. 565.
Hugh C. Smith for defendant in error.
(1) The action of the trial court in refusing to strike out the amended statement was proper. Walker v. Railroad, 193 Mo. 458, 478; Woods v. Railway, 51 Mo.App. 503; Duncan v. Railway, 91 Mo. 67; Stonebraker v. Railroad, 110 Mo.App. 497; Ray v. Railroad, 25 Mo.App. 430; Wood v. Railroad, 51 Mo.App. 502; Morrison v. Railroad, 27 Mo.App. 430; Burnham & Co. v. Tillery, 85 Mo.App. 457; Liese v. Meyer, 143 Mo. 556; Hall & Robinson v. Railway, 80 Mo.App. 466; Rippe v. Railroad, 154 Mo. 364; Greene v. Railway, 60 Mo.App. 314; R. S. 1899, sec. 4079; Herman v. Fanning, 33 Mo.App. 53. (2) Plaintiff's practice in so stating his cause of action was not only permissible but entirely proper. Hess v. Gansz, 90 Mo.App. 442; Zellars v. Light Co., 92 Mo.App. 114; Litton v. Railroad, 111 Mo.App. 149; Jones v. Murray, 167 Mo. 47; Chemical Co. v. Lackawanna Line, 78 Mo.App. 309; Mfg. Co. v. Dawson, 77 Mo.App. 127; Cofer v. Riseling, 153 Mo. 636; Davis v. Boyce, 73 Mo.App. 564; Hansard v. Clothing Co., 73 Mo.App. 587; Hurly v. Railway, 57 Mo.App. 680. (3) Plaintiff simply stated his cause of action in different ways to meet the proof; there was no attempt to seek more than one recovery, and only one recovery was had. However this point is raised too late--no such proposition was called to the attention of the trial court, by motion for new trial or otherwise and it cannot be reviewed here. R. S. 1899, sec. 864; Taylor v. Brotherhood of Trainmen, 106 Mo.App. 214; Merton v. J. I. Case Co., 90 Mo.App. 635. (4) The court did not err in overruling defendant's instructions in the nature of demurrers to the evidence. Colyer v. Railroad, 93 Mo.App. 153; Phillips v. Railway, 107 Mo.App. 206; Dean v. Railway, 54 Mo.App. 647; Bank v. Railway, 109 Mo.App. 167; Oyler v. Railroad, 113 Mo.App. 381; Rinehart v. Railroad, 80 S.W. 910; Reed v. Railroad, 112 Mo.App. 583; Litton v. Railroad, 111 Mo.App. 143; Seidel v. Railroad, 109 Mo.App. 160; Emmerson v. Railroad, 35 Mo.App. 629. (5) The evidence of plaintiff if believed by the jury, and the question of the weight and credibility of the testimony was for it, showed that the fence clear across Bartlett's field where it adjoined defendant's tracks was in bad shape, that there was no post to shut the gate against, that it was open and could not be closed, that one hinge on the gate was broken, that it was not provided with any fastenings.
--Action begun in a justice court to recover double damages under section 1105, Revised Statutes 1899, for the killing of a heifer. A trial in the circuit court resulted in a verdict for plaintiff in the sum of $ 22.50; judgment was entered for double that amount and defendant brought the case here on a writ of error.
In the statement filed when the action was brought, the cause of action pleaded is the act of defendant described in the following averment: "That defendant on said 30th day of May, 1904 (the date the animal was killed), and for a long time prior thereto, failed and neglected to keep and maintain a lawful fence on the sides of its track, but suffered the fence on the south side of the track at the point where said heifer got upon the track and was killed, as aforesaid, to be and remain down and out of repair so that at the time when said heifer went upon said railroad track there was not at said point a lawful fence enclosing said track," etc.
After the case reached the circuit court, plaintiff filed an amended petition containing two counts. In the first, the facts alleged were a repetition of those alleged in the original statement. In the second, it was averred that defendant maintained a gate in the fence on the south side of its right of way and the negligence charged is that defendant "negligently and carelessly suffered and permitted said gate . . . to remain open, unhung, out of repair, without hooks or latches, open and in such condition that it could not be easily opened and shut and failed to keep and maintain posts to which said gate could be hung or fastened, latched or hooked, and the fence on each side of said gate to be and remain down and out of repair" and it is alleged that the heifer entered the right of way through the opening in the fence caused by the condition of ill repair, in which the gate and adjacent fence were suffered to remain, and by defendant's failure to keep the gate closed.
Defendant then filed a motion to strike out the amended petition on the grounds that it contained a cause of action not embraced in the original statement and that the new cause pleaded was a departure from that on which the case was tried in the justice court. This motion was overruled and defendant answered and went to trial. Defendant complains of the overruling of the motion as an error committed against it. Satisfied with the propriety of the ruling of the learned trial judge, we will dispose of the subject of this assignment on its merits.
In actions ex delicto, the wrongful act of which complaint is made is the cause of action and we readily concede an amendment of the petition should not be permitted where the effect would be either to substitute as the cause of action a wrongful act different from that alleged in the original petition or to inject such wrong into the case as an additional cause. [Knight v. Railroad, 120 Mo.App. 311, 96 S.W. 716.] But we do not discover such result in the amendment made by plaintiff in the present case. The same wrong is the subject of each count and the damage alleged to have been suffered is the same in one as in the other. Defendant argues that the negligent failure of the railroad company to maintain a lawful fence along its right of way is a different wrong from that involved in negligently failing to maintain a lawful gate in such fence at a farm crossing. But this is not so. A gate of this character is a part of the fence and proof that the animal destroyed entered the right of way through...
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